B-180394, DEC 24, 1974

B-180394: Dec 24, 1974

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IS CONSIDERED AS ON TEMPORARY DUTY FOR THE ENTIRE PERIOD. PER DIEM ALLOWANCES ARE LIMITED TO PERIOD AFTER ARRIVAL UNTIL ORIGINAL DATE OF RELIEF FROM ACTIVE DUTY AS SUBSEQUENT PERIOD WAS PRIMARILY FOR MEMBER'S BENEFIT AND NOT BECAUSE OF NEEDS OF SERVICE. 2. WHO IS REGARDED AS ON TEMPORARY DUTY AT THAT LOCATION. IS ENTITLED TO ALLOWANCE FOR DEPENTENT TRAVEL FROM PORT OF DEBARKATION TO LA MIRADA. M7009- 1 SINCE SUCH TRAVEL WAS INCIDENT TO ORDERS FOR RELIEF FROM ACTIVE DUTY. 3. WHO IS REGARDED AS ON TEMPORARY DUTY AT THAT LOCATION. IS NOT ENTITLED TO DISLOCATION ALLOWANCE WHICH UNDER 1 JTR PARA. M9000 IS AUTHORIZED ONLY UPON RELOCATION OF MEMBER'S HOUSEHOLD UPON A PERMANENT CHANGE OF STATION.

B-180394, DEC 24, 1974

1. MILITARY OFFICER TRANSFERRED UNDER PERMANENT CHANGE OF STATION ORDERS FROM OVERSEAS TO FORT MACARTHUR, CALIFORNIA, FOR SEPARATION INCIDENT TO INVOLUNTARY RELIEF FROM ACTIVE DUTY, WHO AFTER ARRIVAL AS ASSIGNED TO SERVE AS A STAFF OFFICER AND WHO LATER RECEIVED EXTENSION OF TOUR FOR FOR SHORT PERIOD BECAUSE OF WIFE'S PREGNANCY, IS CONSIDERED AS ON TEMPORARY DUTY FOR THE ENTIRE PERIOD. HOWEVER, PER DIEM ALLOWANCES ARE LIMITED TO PERIOD AFTER ARRIVAL UNTIL ORIGINAL DATE OF RELIEF FROM ACTIVE DUTY AS SUBSEQUENT PERIOD WAS PRIMARILY FOR MEMBER'S BENEFIT AND NOT BECAUSE OF NEEDS OF SERVICE. 2. MILITARY OFFICER TRANSFERRED UNDER PERMANENT CHANGE OF STATION ORDERS FROM OVERSEAS TO FORT MACARTHUR, CALIFORNIA, FOR SEPARATION INCIDENT TO INVOLUNTARY RELIEF FROM ACTIVE DUTY, WHO IS REGARDED AS ON TEMPORARY DUTY AT THAT LOCATION, IS ENTITLED TO ALLOWANCE FOR DEPENTENT TRAVEL FROM PORT OF DEBARKATION TO LA MIRADA, CALIFORNIA, IN ACCORD WITH 1 JTR PARA. M7009- 1 SINCE SUCH TRAVEL WAS INCIDENT TO ORDERS FOR RELIEF FROM ACTIVE DUTY. 3. MILITARY OFFICER TRANSFERRED UNDER PERMANENT CHANGE OF STATION ORDERS FROM OVERSEAS TO FORT MACARTHUR, CALIFORNIA, FOR SEPARATION INCIDENT TO INVOLUNTARY RELIEF FROM ACTIVE DUTY, WHO IS REGARDED AS ON TEMPORARY DUTY AT THAT LOCATION, IS NOT ENTITLED TO DISLOCATION ALLOWANCE WHICH UNDER 1 JTR PARA. M9000 IS AUTHORIZED ONLY UPON RELOCATION OF MEMBER'S HOUSEHOLD UPON A PERMANENT CHANGE OF STATION. ALSO, THE ALLOWANCE IS NOT PAYABLE IN CONNECTION WITH TRAVEL FROM THE LAST PERMANENT DUTY STATION TO HOME OR PLACE FROM WHICH ORDERED TO ACTIVE DUTY, UPON RELEASE FROM ACTIVE DUTY (1 JTR PARA. M9004-1, ITEM 3).

THIS ACTION IS IN RESPONSE TO A REQUEST FOR ADVANCE DECISION DATED NIVEMBER 5, 1973, RECEIVED FROM THE FINANCE AND ACCOUNTING OFFICER, HEADQUARTERS FORT MACARTHUR, SAN PEDRO, CALIFORNIA, CONCERNING THE CLAIM OF CAPTAIN ROBERT J. CLARKSON, USAR, FOR ALLOWANCE FOR HIS DEPENDENTS' TRAVEL FROM MCGUIRE AIR FORCE BASE, NEW JERSEY, TO LA MIRADA, CALIFORNIA, IN JULY 1973 AND FOR A DISLOCATION ALLOWANCE IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION FROM GERMANY TO FORT MACARTHUR, CALIFORNIA. THE REQUEST HAS BEEN ASSIGNED PDTATAC CONTROL NO. 74-1 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE BY ENDORSEMENT DATED JANUARY 4, 1974.

THE RECORD SHOWS THAT BY SPECIAL ORDERS NO. 176, DATED JUNE 25, 1973, ISSUED BY HEADQUARTERS, UNITED STATES ARMY, EUROPE, AND SEVENTH ARMY, APO 09403, THE MEMBER WAS TRANSFERRED ON A CHANGE OF PERMANENT STATION TO FORT MACARTHUR, SAN PEDRO, CALIFORNIA, TO REPORT ON JULY 15, 1973, AS HE WAS SELECTED FOR RELEASE FROM ACTIVE DUTY IN ACCORD WITH PARAGRAPH 3-58B OF ARMY REGULATION (AR) 635-100.

BY SPECIAL ORDERS NO. 155, AUGUST 9, 1973, HEADQUARTERS FORT MACARTHUR, VERBAL ORDER OF THE COMMANDING OFFICER OF JULY 31, 1973, WHICH ASSIGNED CAPTAIN CLARKSON TO DUTY AS A PLANS OPERATIONS AND TRAINING STAFF OFFICER, WAS CONFIRMED.

ON AUGUST 28, 1973, THE MEMBER REQUESTED AN EXTENSION OF HIS ACTIVE DUTY TOUR FROM SEPTEMBER 13, 1973, THE DATE ON WHICH HE WOULD OTHERWISE HAVE BEEN SEPARATED TO APPROXIMATELY MARCH 15, 1974, DUE TO THE PREGNANCY OF HIS WIFE. HIS REQUEST WAS APPROVED ON AUGUST 31, 1973, PURSUANT TO AUTHORITY CONTAINED IN AR 135-215 WHICH ALLOWS FOR A SHORT TERM EXTENSION OF ACTIVE DUTY IN SUCH CASES. THE MEMBER RECEIVED PERMISSION TO REMAIN ON ACTIVE DUTY UNTIL MARCH 15, 1974, UNLESS HIS WIFE'S PREGNANCY WAS TERMINATED AT AN EARLIER DATE, IN WHICH CASE HE WAS TO BE RESCHEDULED FOR EARLIER RELEASE. IT APPEARS THAT THE MEMBER WAS RELEASED FROM ACTIVE DUTY ON MARCH 15, 1974.

THE REQUEST FOR ADVANCE DECISION REFERS TO DECISION B-177085, JULY 23, 1973 (53 COMP. GEN. 44) IN WHICH THE MEMBER WAS TO BE AT A SEPARATION STATION FOR A PERIOD NOT TO EXCEED 90 DAYS AND HE WAS SEPARATED ON OR ABOUT THE DATE ORIGINALLY SCHEDULED. AS CAPTAIN CLARKSON WAS NOT SEPARATED FROM THE SERVICE ON SEPTEMBER 13, 1973, AS ORIGINALLY SCHEDULED, AND HIS STAY AT FORT MACARTHUR EXCEEDED 90 DAYS, THE FOLLOWING QUESTIONS ARE ASKED:

A. MAY FORT MACARTHUR BE CONSIDERED THE MEMBER'S PERMANENT STATION ENTITLING HIM TO PAYMENT FOR TRAVEL PERFORMED BY HIS DEPENDENTS AND TO A DISLOCATION ALLOWANCE?

B. OR MAY FORT MACARTHUR BE CONSIDERED A TEMPORARY ASSIGNMENT AND THE MEMBER ENTITLED TO A PER DIEM ALLOWANCE?

IN ENDORSING THE REQUEST FOR ADVANCE DECISION THE EXECUTIVE OFFICER, U.S. ARMY FINANCE SUPPORT AGENCY, MADE REFERENCE TO DECISION B-153696, JUNE 1, 1964, AND SAID THAT THE QUESTION AROSE AS TO WHETHER THE MEMBER'S RETENTION ON ACTIVE DUTY BECAUSE OF THE PREGNANCY OF HIS WIFE WOULD ENTITLE HIM TO PER DIEM ALLOWANCES FOR THE PERIOD OF EXTENSION IN THE EVENT FORT MACARTHUR WERE DETERMINED TO BE HIS TEMPORARY DUTY STATION.

SECTION 404 OF TITLE 37, U.S.C. (1970), PROVIDES IN PERTINENT PART THAT UNDER REGULATIONS PRESCRIBED BY THE SECTETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER ORDERS UPON A CHANGE OF PERMANENT STATION, OR OTHERWISE, OR WHEN AWAY FROM HIS DESIGNATED POST OF DUTY AND ALSO UPON SEPARATION FROM THE SERVICE OR RELEASE FROM ACTIVE DUTY FOR TRAVEL FROM HIS LAST DUTY STATION TO HIS HOME OR THE PLACE FROM WHICH HE WAS CALLED OR ORDERED TO ACTIVE DUTY.

PARAGRAPH M3050-1, 1 JOINT TRAVEL REGULATIONS (1 JTR), PROMULGATED PURSUANT TO THE ABOVE AUTHORITY, PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE ACTUALLY IN A TRAVEL STATUS, AND THAT A MEMBER IS DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL AWAY FROM HIS PERMANENT DUTY STATION, UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT TRAVEL ORDERS, INCLUDING PERIODS OF TEMPORARY DUTY. PARAGRAPH M1150-10A OF THE REGULATIONS DEFINES THE TERM "PERMANENT STATION" AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH A MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY. SUBPARAGRAPH M3003-2A DEFINES "TEMPORARY DUTY" AS DUTY AT ONE OR MORE LOCATIONS, OTHER THAN AT THE PERMANENT STATION, AT WHICH A MEMBER PERFORMS DUTY UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT, OR PENDING FURTHER ASSIGNMENT, EITHER TO A NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION UPON COMPLETION OF THE TEMPORARY DUTY.

WHETHER A PARTICULAR DUTY ASSIGNMENT IS PERMANENT OR TEMPORARY IN NATURE IS TO BE DETERMINED BY CONSIDERING THE ORDERS UNDER WHICH THE ASSIGNMENT WAS MADE AND THE CHARACTER OF THE ASSIGNMENT ITSELF, WITH THE PURPOSE AND DURATION OF THE ASSIGNMENT BEING VITAL ELEMENTS IN THAT DETERMINATION. SEE 24 COMP. GEN. 667, 670 (1945).

PARAGRAPH 3-58, AR 635-100, FEBRUARY 19, 1969 (CHANGE 15, DECEMBER 26, 1972), PROVIDES FOR THE INVOLUNTARY RELIEF FROM ACTIVE DUTY OF OFFICERS WHEN BUDGETARY OR AUTHORIZATION LIMITATIONS REQUIRE A REDUCTION OF OFFICER STRENGTH (SUBPARA. B.). IN SUCH INSTANCE, THE OFFICER IS RELIEVED FROM ACTIVE DUTY ON THE 90TH DAY AFTER HE RECEIVES NOTIFICATION OF THE DECISION TO SEPARATE HIM UNLESS HE CONSENTS TO AN EARLIER RELEASE DATE (SUBPARA. E).

IN THE PRESENT CASE, THE MEMBER'S ORDERS SHOW THAT HE WAS COMPLETELY DETACHED FROM HIS OVERSEAS ASSIGNMENT AND THAT HIS TRANSFER TO FORT MACARTHUR WAS DEEMED A PERMANENT CHANGE OF STATION ASSIGNMENT. HOWEVER, IT IS CLEAR THAT THE MEMBER WAS ASSIGNED TO THAT LOCATION FOR THE PURPOSE OF SEPARATION PROCESSING AND, IN ACCORD WITH PARA. 3-58. AR 635-100, THE TOTAL PERIOD THAT HE WAS TO BE AT THAT LOCATION WAS NOT TO EXCEED 90 DAYS. IN THE CIRCUMSTANCES THE CHARACTER OF THE DUTY TO BE PERFORMED AND THE LIMITED DURATION OF THE MEMBER'S ASSIGNMENT REQUIRE THE CONCLUSION THAT THE DUTY STATUS WAS TEMPORARY RATHER THAN PERMANENT. 53 COMP. GEN. 44, SUPRA.

IN DECISION B-153696, CITED ABOVE, AN ARMY MEMBER ON TEMPORARY DUTY UNDER INSTRUCTION, UPON COMPLETION OF THE COURSE REQUESTED A 45-DAY DEFERRAL OF HIS ASSIGNMENT TO HIS PERMANENT DUTY STATION, WHICH WAS GRANTED DUE TO THE PREGNANCY OF HIS WIFE. IT WAS HELD THAT PER DIEM ALLOWANCES WERE PROPER ONLY FOR THE ORIGINAL PERIOD AND NOT FOR THE SUBSEQUENT PERIOD THE MEMBER WAS PRESENT AT THAT STATION. IN THAT DECISION IT WAS INDICATED THAT WHERE A MEMBER'S REQUEST FOR ASSIGNMENT IS FOR COMPASSIONATE OR OTHER PERSONAL REASONS, THE FACT OF THE MEMBER'S REQUEST DOES NOT LESSEN HIS RIGHT TO TRAVEL AND TRANSPORTATION ALLOWANCES IF HIS REASSIGNMENT IS NECESSARY TO THE SERVICE. HOWEVER, IT IS NOT ENOUGH THAT THE REASSIGNMENT IS MERELY NOT INCONSISTENT WITH THE NEEDS OF THE SERVICE. IT SHOULD APPEAR THAT MILITARY CONSIDERATIONS INDUCED THE REASSIGNMENT AS, IRRESPECTIVE OF ANY OTHER CONSIDERATIONS, NO AUTHORITY EXISTS FOR THE PAYMENT OF PER DIEM ALLOWANCES INCIDENT TO TEMPORARY DUTY UNLESS SUCH DUTY IS PERFORMED ON PUBLIC BUSINESS. SEE DECISION B-146432, SEPTEMBER 13, 1961.

THE MEMBER WAS ASSIGNED TO FORT MACARTHUR FOR THE PURPOSE OF SEPARATION PROCESSING SEPTEMBER 13, 1973, APPARENTLY WAS THE 90TH DAY AFTER THE MEMBER'S RECEIPT OF NOTICE THAT HE WOULD BE RELEASED FROM ACTIVE DUTY AND IN ACCORD WITH PARA. 3-58E. AR 635-100, HE WAS TO BE RELEASED FROM ACTIVE DUTY ON THAT DAY. THE FACT THAT AFTER ARRIVAL HE WAS ASSIGNED TO PERFORM DUTY AS A PLANS, OPERATIONS, AND TRAINING STAFF OFFICER WAS SECONDARY TO THE MEMBER'S PRIMARY PURPOSE OF BEING ASSIGNED TO FORT MACARTHUR -- THE FACT THAT HE WAS TO BE RELIEVED FROM ACTIVE DUTY ON SEPTEMBER 13, 1973. HOWEVER, THE MEMBER'S EXTENSION OF ACTIVE DUTY UNDER THE ORDERS OF AUGUST 31, 1973, WAS INDUCED BY PERSONAL CONSIDERATIONS TO ACCOMMODATE THE MEMBER DUE TO HIS WIFE'S PREGNANCY RATHER THAN AS A SERVICE NECESSITY. CONSEQUENTLY, IT MUST BE CONCLUDED THAT THE EXTENSION OF ACTIVE DUTY WAS AUTHORIZED SOLELY OUT OF THE CONSIDERATION FOR CAPTAIN CLARKSON AND HIS FAMILY AND NOT TO MEET THE NEEDS OF THE SERVICE.

THEREFORE, WHILE AT FORT MACARTHUR THE MEMBER IS ENTITLED TO PER DIEM ALLOWANCES TO SEPTEMBER 13, 1973, HIS ORIGINAL DATE FOR SEPARATION, AND NOT FOR THE SUBSEQUENT PERIOD PRIOR TO HIS RELIEF FROM ACTIVE DUTY ON MARCH 15, 1974.

WITH REGARD TO CAPTAIN CLARKSON'S CLAIM FOR ALLOWANCE FOR THE TRAVEL OF HIS DEPENDENTS FROM MCGUIRE AIR FORCE BASE, NEW JERSEY, TO LA MIRADA, CALIFORNIA, IN JULY 1973, AND FOR A DISLOCATION ALLOWANCE, REFERENCE IS MADE TO 1 JTR PARA. M7009-1, WHICH PROVIDES IN PERTINENT PART THAT A MEMBER ON ACTIVE DUTY WHO IS RELIEVED FROM SUCH DUTY WILL BE ENTITLED TO TRANSPORTATION OF DEPENDENTS NOT TO EXCEED THE ENTITLEMENT FROM HIS LAST PERMANENT DUTY STATION TO THE PLACE TO WHICH THE MEMBER ELECTS TO RECEIVE TRAVEL ALLOWANCE FOR HIS TRAVEL UNDER PARA. M4157, HIS HOME OF RECORD OR THE PLACE FROM WHICH HE WAS CALLED TO ACTIVE DUTY. SINCE IT APPEARS THAT THE DEPENDENTS TRAVELED TO LA MIRADA INCIDENT TO ORDERS PROVIDING FOR HIS RELIEF FROM ACTIVE SERVICE, ALLOWANCE FOR THEIR TRAVEL MAY BE PAID IN ACCORD WITH THE ABOVE.

A DISLOCATION ALLOWANCE MAY BE AUTHORIZED ONLY UPON THE RELOCATION OF A MEMBER'S HOUSEHOLD UPON A PERMANENT CHANGE OF STATION (1 JTR PARA. M9000). CONSEQUENTLY, THERE IS NO ENTITLEMENT TO A DISLOCATION ALLOWANCE INCIDENT TO CAPTAIN CLARKSON'S ASSIGNMENT INCIDENT TO SEPARATION, WHICH IS REGARDED AS TEMPORARY DUTY. ADDITIONALLY, IT MAY BE NOTED THAT 1 JTR PARA. M9004-1, ITEM 3, PROVIDES THAT A DISLOCATION ALLOWANCE IS NOT PAYABLE IN CONNECTION WITH TRAVEL FROM THE LAST PERMANENT DUTY STATION TO HOME OR TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY, UPON RELEASE FROM ACTIVE DUTY.